Asbestos Injuries Compensation Fund Limited [2011] NSWSC 97

Asbestos Injuries Compensation Fund Limited [2011] NSWSC 97

Read harmoniously with the Final Funding Agreement and the Trust Deed, the 2005 Act definition of "personal asbestos claim" does not extend to nervous shock or psychiatric injury suffered by a person who was not exposed to asbestos but reacted to another person's asbestos-related injury or death. The personal injury or death must arise from the claimant individual's exposure to the asbestos products, with related claims by estates or dependant relatives covered as specified. The SPF trustee and Amaca were therefore justified in refusing to pay the claims of Ms Tamaresis and Ms Winch.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Application for Advice or Direction Under S 55 of the James Hardie Former Subsidiaries (winding Up and Administration) Act 2005 / Principal Judgment
Outcome
Advice or direction answered in the affirmative; the trustee was justified in refusing to make payment in respect of the claims.
Legal Topics
['asbestos Compensation Fund' 'personal Asbestos Claim' 'nervous Shock Claims' 'construction of Trust Deed, Final Funding Agreement and Statute' 'payable Liabilities']
['trusts' 'statutory Interpretation' 'corporations and Winding Up' 'personal Injury Compensation'] ['asbestos Compensation Fund' 'personal Asbestos Claim' 'nervous Shock Claims' 'construction of Trust Deed, Final Funding Agreement and Statute' 'payable Liabilities']

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Procedural Posture

Application for Advice or Direction Under S 55 of the James Hardie Former Subsidiaries (winding Up and Administration) Act 2005 / Principal Judgment

Legal Issues

  1. 1 ['Whether Amaca, or the SPF trustee on its behalf, would be justified in refusing to pay the nervous shock claims of Paraskevi Tamaresis and Jessie Winch.' 'Whether the definition of "personal asbestos claim" in the 2005 Act extends to personal injury arising from another person\'s exposure to asbestos.' 'Whether the 2005 Act, the Final Funding Agreement and the Trust Deed should be construed harmoniously so that only claims by individuals exposed to asbestos, their estates or dependant relatives are payable.']

Ratio Decidendi

Read harmoniously with the Final Funding Agreement and the Trust Deed, the 2005 Act definition of "personal asbestos claim" does not extend to nervous shock or psychiatric injury suffered by a person who was not exposed to asbestos but reacted to another person's asbestos-related injury or death. The personal injury or death must arise from the claimant individual's exposure to the asbestos products, with related claims by estates or dependant relatives covered as specified. The SPF trustee and Amaca were therefore justified in refusing to pay the claims of Ms Tamaresis and Ms Winch.

Court Disposition

Advice or direction answered in the affirmative; the trustee was justified in refusing to make payment in respect of the claims.

Orders

  • ['Advice or direction sought in paragraph 55(a) and paragraph 55(c) of the amended statement of facts pursuant to s 55(4) of the 2005 Act answered in the affirmative.' 'Parties to be heard on costs.' 'Parties directed to bring in short minutes of order reflecting the reasons.']